Back in July 2005, I posted to SCOTUSblog a list of precedents that were the most vulnerable in the wake of Justice O'Connor's retirement. The list is republished below. At the time, I wrote that the most important and most vulnerable of those precedents were in the areas of the Establishment Clause (especially the direct funding cases such as Mitchell v. Helms), affirmative action (and just watch what happens to Grutter later this Term), and abortion, where Stenberg v. Carhart was hanging by a thread. Today, the thread snapped, as a five-Justice majority upheld the federal "partial-birth abortion" prohibition.

[By the way: Justice Thomas in his concurrence suggests that he might have voted to invalidate the statute if a Commerce Clause challenge had been raised. In other words, if the Respondents had raised a Commerce Clause challenge, as well -- something they were wise not to do, not of least of which because statutes governing medical facilities plainly are valid Commerce legislation -- the Court might well have invalidated the statute, even though there would have been no majority of the Court for any particular ground of invalidation (a form of "Tidewater Transfer" disposition). That's not really very important, however, because the practical significance of today's case is not so much the fate of the federal statute itself as the evisceration of the Casey/Carhart undue burden test for facial challenges.]

My post from July 2005:

These are among the cases in which Justice O'Connor's has been the decisive vote or opinion, and in which a more conservative Justice might well vote to overrule the governing precedent.

Note: Because most Justices consider stare decisis a more serious obstacle in cases of statutory construction, those cases (e.g., the Davis and Jackson Title IX decisions) might be more secure, even if Justice O'Connor's replacement would not have agreed with her as a matter of first impression.

Been lurking for over a year...and this is the first time I've been frightened enough to actually ask a question. And it's simply this: Today's ruling is strictly a facial interpretation of the statute. Given the Roberts' Court penchant for ducking tough issues on prudential grounds, what are the odds now (that the Kennedy majority has sanctioned actual physical harm to a woman) that the SCOTUS would avoid a subsequent challenge on the grounds of mootness? Roe's reliance on the McKenna "capable of repetition" exception has always seemed so crucial to abortion rights. Today's opinion seems to beat a retreat from THAT aspect as well. Dark dark day.

The pro-life rhetoric (strongly rejected by the dissent) and attack on facial challenges (much practical effect, opening up the way for lots more dubious laws that will be struck down as applied, but on books for years since there are various situations when the laws might be okay) appears to be the core problem here.

The opinion, much to a few justices annoyance I'm sure, left open the way for 'as applied' challenges to the law. But, it also supplied a rational basis test for disputed health requirements, leaving partisan legislatures not a woman's doctor the ultimate power to decide cases where expert testimony leans the way toward allowing a procedure.

So, though some of the pro-choice rhetoric is over the top, the ruling is of real concern.

I’ll be writing on this issue for ACSblog, but I wanted to at least jot this idea down today. In his concurring opinion, Justice Thomas indicates that he might have struck down the abortion ban for exceeding Congress’s power under the commerce clause. Justice Scalia joined Thomas, but perhaps only on the grounds that Thomas was correct in stating that the commerce clause argument was not raised.

Thomas has a long-standing position limiting the commerce clause (Raich dissent, Lopez concurrence, e.g.). Given that, I don’t think Thomas was bluffing when he said he would have nullified the federal abortion ban on those grounds. That is, Thomas could have been a fifth vote to strike the law. Scalia might have been a sixth.

There is no question, either, that the liberal justices would have upheld the law under the commerce power and voided it under their abortion jurisprudence. That is, they were going to be four votes to strike it no matter what.

That means that Kennedy, whose vote was certain based on Stenberg where he voted to uphold a partial birth abortion ban by a state, did not have to be the swing vote.

At this point in my research, I believe strongly that the pro choice movement made a significant and decisive error in not raising a commerce clause challenge to this law. Instead of charging towards an almost certain 5-4 decision against them, they could have had a better shot at a 5-4 or better victory. Yes, the victory would have been without the benefit of a majority opinion, but they were heading towards that anyway.

Honestly, what could have motivated the pro choice movement to willfully fail their constituency so terribly? This is a question that must be answered.